Zhen Hui Ye v. Holder , 391 F. App'x 986 ( 2010 )

09-4642-ag
Ye v. Holder
BIA
Mulligan, IJ
A077 316 740
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 9 th day of September, two thousand ten.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 DENNY CHIN,
10 Circuit Judges.
11
12 _____________________________________
13
14 ZHEN HUI YE,
15 Petitioner,
16
17 v. 09-4642-ag
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Troy Nader Moslemi, Moslemi & Associates,
25 New York, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney General,
28 Civil Division; John S. Hogan, Senior
29 Litigation Counsel; Jennifer L.
30 Lightbody, Senior Litigation Counsel;
31 Leslie M. Thompson, Paralegal Specialist,
32 Office of Immigration Litigation, Civil
33 Division, United States Department of
1 Justice, Washington, D.C.
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review
5 is DENIED.
6 Petitioner Zhen Hui Ye, a native and citizen of the
7 People’s Republic of China, seeks review of an October 9,
8 2009, order of the BIA affirming the January 24, 2008,
9 decision of Immigration Judge (“IJ”) Thomas J. Mulligan
10 denying Ye’s application for asylum and withholding of
11 removal. In re Zhen Hui Ye, No. A077 316 740 (B.I.A. Oct.
12 9, 2009), aff’g No. A077 316 740 (Immig. Ct. N.Y. City Jan.
13 24, 2008). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 As an initial matter, although Ye is challenging the
16 denial of relief in “asylum only” proceedings, as opposed to
17 an actual removal order, we nonetheless have jurisdiction
18 under 8 U.S.C. § 1252(a)(1) because the denial of relief in
19 these circumstances is the functional equivalent of a
20 removal order. See Kanacevic v. INS, 448 F.3d 129, 134 (2d
21 Cir. 2006).
22 Under the circumstances of this case, we review the
23 IJ’s decision as supplemented by the BIA’s decision. See
2
1 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
2 applicable standards of review are well-established.
3 See 8 U.S.C. § 1252(b)(4)(B); Jian Hui Shao v. Mukasey, 546
4 F.3d 138, 157-58 (2d Cir. 2008); Salimatou Bah v. Mukasey,
5 529 F.3d 99, 110 (2d Cir. 2008).
6 Ye concedes that he did not engage in “other
7 resistance” to China’s family planning policy, but argues
8 that the IJ did not consider the fact that he was threatened
9 with sterilization in determining that he failed to
10 establish a well-founded fear of future persecution.
11 However, in light of Ye’s testimony that the threat of
12 sterilization was directed mainly at his wife, who was
13 subsequently sterilized, and that he did not allege a fear
14 of sterilization if returned to China, the BIA reasonably
15 concluded that Ye failed to meet his burden of proof. See
16 Salimatou Bah, 529 F.3d at 110.
17 Because Ye was unable to meet his burden for asylum, he
18 necessarily failed to meet the higher burden required for
19 withholding of removal. See Paul v. Gonzales, 444 F.3d 148,
20 156-57 (2d Cir. 2006).
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
3
1 removal that the Court previously granted in this petition
2 is VACATED, and any pending motion for a stay of removal in
3 this petition is DISMISSED as moot. Any pending request for
4 oral argument in this petition is DENIED in accordance with
5 Federal Rule of Appellate Procedure 34(a)(2), and Second
6 Circuit Local Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
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